# Mukhtar Ahmad v. Prescribed Officer/A.D.J. Kanpur Nagar & Ors

- **Citation:** (2014) 1 ILRA 237
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-13
- **Case number:** Civil Misc. Writ Petition No. 68403 of 2013
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukhtar-ahmad-v-prescribed-officer-a-d-j-kanpur-nagar-ors-42913
- **Pages:** 3

## Headnote

238 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution
of
India,
Art.-226-Writ
petition against declaration of vacancy
under section 16(i)(h) of U.P. Act No. 13
of 1972-petitioner being prospective
allottee-can
not
challenge-either
in
revision or writ-petition dismissed.

Held: Para-6
In view of foregoing discussion, as the
petitioner's effort challenging the order
declaring the vacancy has failed, his
status would be of an unauthorized
occupant/prospective allottee, therefore
he has no right to challenge the order of
release.

Case Law discussed:
1986(1) ARC 1; AIR 2002 SUPREME COURT
2204; 2008(2) ARC 264.

## Text

1 All] Mukhtar Ahmad Vs. Prescribed Officer/A.D.J. Kanpur Nagar & Ors.
237
cannot be issued directing respondents to do
something which is impermissible in law and
illegal. No person has a legal or constitutional
right to claim parity in the matter which is
something per se illegal. Article 14 has no
application in such case. In Union of India &
another Vs. Kartick Chandra Mondal &
another (2010) 2 SCC 422, the Court has gone
to the extent that even if some other persons
similarly placed have been absorbed, that
cannot be a basis to grant a relief by the Court
which is otherwise contrary to statute. In para
25 of judgment, the Court said:

"Even assuming that the similarly placed
persons were ordered to be absorbed, the
same if done erroneously cannot become the
foundation for perpetuating further illegality.
If an appointment is made illegally or
irregularly, the same cannot be the basis of
further appointment. An erroneous decision
cannot be permitted to perpetuate further error
to the detriment of the general welfare of the
public or a considerable section. This has been
the consistent approach of this Court.
However, we intend to refer to a latest
decision of this Court on this point in the case
of State of Bihar v. Upendra Narayan Singh
and Ors. (2009) 5 SCC 65, the relevant
portion of which is extracted hereinbelow:

"67. By now it is settled that the
guarantee of equality before law enshrined in
Article 14 is a positive concept and it cannot
be enforced by a citizen or court in a negative
manner. If an illegality or irregularity has been
committed in favour of any individual or a
group of individuals or a wrong order has
been passed by a judicial forum, others cannot
invoke the jurisdiction of the higher or
superior court for repeating or multiplying the
same irregularity or illegality or for passing
wrong order ..."

19. In State of Karnataka & others Vs.
Gadilingappa & others (2010) 2 SCC 728, the
Court reiterated that it is well settled principal
of law that even if a mistake is committed in an
earlier case, the same cannot be allowed to be
perpetuated. It is well settled that if a wrong has
been committed by the respondents in respect
to some other persons, that will not provide a
cause of action to claim parity on the ground of
equal treatment since the equality in law under
Article 14 is applicable for claiming parity in
respect to legal and authorized acts. Two
wrongs will not make one right. The Apex
Court in the case of State of Bihar and others
Vs. Kameshwar Prasad Singh and another,
AIR 2000 SC 2306; Union of India and
another Vs. International Trading Co. and
another, AIR 2003 SC 3983; Lalit Mohan
Pandey Vs. Pooran Singh and others, AIR
2004 SC 2303; M/s Anand Buttons Ltd. etc.
Vs. State of Haryana and others, AIR 2005 SC
565; and Kastha Niwarak G. S. S. Maryadit,
Indore Vs. President, Indore Development
Authority, AIR 2006 SC 1142 has held that
Article 14 has no application in such cases.

20. The writ petition therefore, is
devoid of merits and is dismissed.

21. No costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 68403 of 2013

Mukhtar Ahmad... Petitioner
Versus
Prescribed Officer/A.D.J. Kanpur Nagar &
Ors. ...Respondents
Counsel for the Petitioner:
Sri Vivek Mishra, Sri Rajesh Mishra

Counsel for the Respondents:
Sri Manish Tandon, Sri Atul Dayal.
238 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution
of
India,
Art.-226-Writ
petition against declaration of vacancy
under section 16(i)(h) of U.P. Act No. 13
of 1972-petitioner being prospective
allottee-can
not
challenge-either
in
revision or writ-petition dismissed.

Held: Para-6
In view of foregoing discussion, as the
petitioner's effort challenging the order
declaring the vacancy has failed, his
status would be of an unauthorized
occupant/prospective allottee, therefore
he has no right to challenge the order of
release.

Case Law discussed:
1986(1) ARC 1; AIR 2002 SUPREME COURT
2204; 2008(2) ARC 264.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Heard Sri Rajesh Mishra holding
brief of Sri Vivek Mishra, learned counsel
for the petitioner and Sri Atul Dayal along
with Sri Manish Tandon, learned counsel
for the respondents.

2. By means of this writ petition, the
petitioner has prayed for issuing a writ of
certiorari quashing the orders dated
7.5.2011 passed by Rent Control and
Eviction
Officer/Additional
City
Magistrate Ist Kanpur Nagar Kanpur
(hereinafter referred to as 'R.C.E.O')
releasing the accommodation in dispute
and order dated 16.11.2013 passed by
Additional District Judge Court No. 3
Kanpur in Rent Revision No. 45 of 2011
filed against the order dated 7.5.2011.

3. The facts giving rise to this case
are that the petitioner claims himself to be
tenant in the accommodation in dispute.
The respondents no. 3 and 4 have filed an
application under Section 16 (1) (b) of
U.P.Urban
Buildings
(Regulation
of
Letting, Rent and Eviction) Act, 1972
(hereinafter referred to as 'the Act') for
declaring the vacancy and releasing the
accommodation in dispute. After contest,
the vacancy was declared on 24.2.1997.
The order dated 24.2.1997 was challenged
before this Court through writ petition no.
39341 of 1997. This writ petitioner was
dismissed with the following order.

Learned counsel for the petitioner
states that inspite of several letters the
petitioner is not responding. He submits
that in this view of the matter the order
dated 27.7.2010 could not be complied
with. No rejoinder affidavit has been filed
and there is nothing on record to indicate
that the petitioner is depositing the
damages/rent in lieu of his occupation.

Sri K.K. Arora, learned counsel for
the respondents states that the petitioner
has shifted to his own shop in the market.

Without entering into the merits of
the case, as nothing has been brought on
record to show that the petitioner is
depositing the damages/rent in lieu of his
occupation,
hence
the
petition
is
dismissed in terms of the order dated
27.7.2010.

4. After dismissal of the writ petition
by this court, vacancy was declared by
R.C.E.O. on 7.5.2011. Challenging the
aforesaid order, the petitioner has filed
Revision no. 45 of 2011. The revision was
also dismissed. Now the petitioner has
challenged the order of release along with
the order dismissing the revision filed
against the order of release.

5. The Full Bench of this Court in
Talib Hasan and another Vs. Ist Additional
District Judge, Nainital and others 1986 (1)
ARC 1, has held that in the matter of release
1 All] B.S. Chauhan (Bhuri Singh Chauhan) Vs. State of U.P. and Ors.
239
under Section 16 (1) of the Act, prospective
allottee has got no say. Neither he can contest
and oppose the release application nor he can
file revision against an order allowing the
release application of the landlord. The Apex
Court also approved the same view in Ram
Narayan Sharma Vs. Shakuntala Gaur AIR
2002 Supreme Court 2204. Similar view has
been taken by the Division Bench of this
Court in Ajay Pal Singh Vs. District Judge,
Meerut and others 2008 (2) ARC 264.

6. In view of foregoing discussion, as
the petitioner's effort challenging the order
declaring the vacancy has failed, his status
would
be
of
an
unauthorized
occupant/prospective allottee, therefore he
has no right to challenge the order of release.

7. The writ petition is dismissed.

8. In the last, Sri Rajesh Mishra,
learned counsel for the petitioner submits
that six months' time may be given to the
petitioner to vacate the premises.

9. Considering the facts of this case, it
is provided that in case the petitioner files an
undertaking within a period of three weeks
from today before the R.C.E.O. that he will
vacate the premises by 31st May, 2014, the
eviction
of
the
petitioner
from
the
accommodation in dispute shall be kept in
abeyance till 31st May, 2014. In case of non
filing of the undertaking within the aforesaid
period, the R.C.E.O. shall be at liberty to
proceed in accordance with law.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 69356 of 2013
B.S. Chauhan (Bhuri Singh Chauhan)...
 ...Petitioner
Versus
State of U.P. and Ors.... Respondents

Counsel for the Petitioner:
Sri Virendra Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Retirement
age-employees working with Dist. Rural
development agency-whether retire on
achieving age of 60 years-held-no-unless by
adopting procedure contained in G.O.
12.08.13-decision taken by governmentemployees shall be governed by such
amended provision-but in between as per
existing provision retirement on 58 yearsproper-petition dismissed.

Held: Para-16
In view of above and looking to the facts
and circumstances of the case, in my view,
retirement of petitioner on 31.12.2013, on
attaining the age of superannuation of 58
years, according to existing provision, does
not
warrant
any
interference.
The
Government Order dated 12.08.2013 would
come into effect only when the entire
procedure laid down in para 1 to 6 is
completed and, thereafter, a decision is
taken and order is issued having effect of
amending present provision, extending age
of superannuation from 58 to 60 years.
Presently it is not the case in present writ
petition.

Case Law discussed:
W.P. No. 29195 of 2011; 2008(3) ADJ 21(DB);
1998(4) SCC 65; 1998(4) SCC 114; 2005(8)
SCC 394; 2006(3) SCC 620; 2000(10) SCC
153; 2001(5) SCC 482; 2005(5) SCC 598;
2008(1) ADJ 209.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. The petitioner is an employee in
District
Rural
Development
Agency
(hereinafter referred to as the 'DRDA'), which